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Abstract

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made more transparently and coherently. This is the focus of Part I of this article. Part II describes the changes in copyright law brought about by the Copyright Act of 1976. Copyright skeptics regard the 1976 Act as an unwarranted expansion of copyright rights, constituting a triumph of special interest politics over the public good and common sense. Part II argues that, whatever the politics might have been, the shift to a dynamic system of copyright rights was a justified response to the combined problems of legislative gridlock and the expectation of continued technological and social change. Part III, the heart of this article, examines the structural role of fair use in the context of an evolving copyright system. Those who see fair use as stemming the tide of expansive copyright rights are bound to be disappointed. Rather, it is argued that fair use is a structural tool that allows copyright to adapt to changing circumstances. This article establishes this argument in two stages. First, it recognizes that the structural role of fair use is to enable broader more flexible rights to be vested in the copyright owner. Second, it shows that in order to preserve copyright's ability to adapt to new technology, fair use must remain a somewhat open-ended standard developed by the judiciary through the imperfect process of common law adjudication. Ultimately, the assumptions as to the proper scope of the copyright owner's rights can only be developed by deriving fundamental principles from copyright law itself. Exactly what those fundamental principles might be is obviously a matter of debate. However, it is much narrower debate than that which is required by reference to normative conceptions of the good in general, and it is much more likely to result in stability and predictability in fair use jurisprudence than any of the cost-benefit approaches advocated in the literature. The Supreme Court's emphasis on transformativeness in its most recent fair use decision, Campbell v. Acuff-Rose, is an important step toward a more coherent fair use doctrine. Nevertheless, there are additional steps to be taken and other fundamental principles within copyright law beyond its preference for transformative uses. This recommendation is the subject of Part IV. There are three principles of copyright law over and above transformativeness that judges can apply to give substance to the structural role of fair use. The first is the well-established principle of the idea expression distinction. Recent case law suggests two other principles are emerging, but have yet to be articulated. These are the principles of consumer autonomy and medium neutrality. This article identifies these trends and their potential to provide a more principled and consistent basis for fair use analysis.